Transcript of Attorney General Alberto R. Gonzales Briefing
with Reporters Regarding Military Commissions

MR. GONZALES: Thank you for coming. It's good to see all of you again. I just
got back, got back yesterday from a couple of days of travel to South Carolina,
talked about our obscenity prosecutions, then down to New York to talk about
the -- taskforce and then to Kansas City, Missouri to talk about -- and our
efforts to deal with child pornography. During my travels, I did have the
occasion to respond to questions related to terror.

The President has been out today, as I'm sure you know, to talk about this
issue, and I suspect you have some additional questions which I'm happy to
respond, so why don't we just get to it.

QUESTION: The most important question for him when the legislation reaches his
desk will be will this enable the important CIA program to continue? Senators
McCain, Warner and Graham seem pretty intent on not allowing any evidence that
comes out of coerced interrogation tactics.

So my question is, if there is a middle ground between these two positions,
where do you see it? Where is the room for compromise?

MR. GONZALES: I think the President in making his remarks was focusing on
Common Article 3. I think we can continue having discussions about classified
information and what the procedures should be for military commissions. So I
think those are viewed separately, quite frankly. I think most of his comments
this morning were focused on the high standards, the clarity that the President
wants to impose on our obligation under Common Article 3.

There's been some discussion about perhaps this Administration wanting to
redefine our obligations under Geneva, and nothing could be further from the
truth. The truth of the matter is, there's been no definition about what our
obligations are under Common Article 3.

There is no baseline standard for Common Article 3. You have opinions all
across the board about what certain words mean in Common Article 3. There a
certain practices, such as torture, murder, maiming, certain serious offenses
that are clearly prohibited that we all agree with that should be outlawed.
But certain other kinds of practices, there is some serous question as to
whether or not they would be permitted under Common Article 3, given the
language such as outrages upon personal dignity, particularly humiliating and
degrading treatment, and if you look to see how those words have been
interpreted by foreign tribunals, it does create uncertain for our men and
women, as the President said, who are engaged in collecting information to
protect America.

And so it really is true that we are seeking clarity. We are seeking to impose
a high standard, which was overwhelmingly approved by the Senate, by the
Congress, last year, which is the standards under the McCain Amendment, the
standard being cruel, unusual and degrading treatment would be prohibited.

And it would be that level of treatment prohibited by the Fifth, Eighth and
Fourteenth Amendment of our Constitution. We think it is good to tie it to a
U.S. standard to provide certainty to the men and women on the front lines
asking questions, collecting information to protect America. We don't believe
it should be subject to decisions by foreign courts. We think we should tie it
to a U.S. standard. I think that's very, very important to provide clarity and
certainty, as much clarity and certainty as we can to our men and women
protecting America.

QUESTION: Could you give me an example of what types of other tactics you feel
are unclear?

MR. GONZALES: What types of other tactics? What I can tell you is the kind of
decisions that have been found to be degrading by the European Court of Human
Rights. For example, the size of a cell. If it doesn't meet a certain size,
it would constitute -- it would be degrading. The amount of light that comes
into a cell might constitute degrading treatment.

QUESTION: Are you saying you disagree with that, that those things are not
important, the size of the cell, the amount of light?

MR. GONZALES: Well, I think they are important, but I think that when we're
talking about detention facilities, it makes sense to look at the standards,
the constitutional standards imposed by our courts in terms of what is
required. And that we've got decisions all across the board regarding certain
standards and certain levels of treatment, and there is no baseline standard.

That's the thing I think most people don't understand, is that there is no
baseline standard under Common Article 3. We want to impose a certain high
standard as to what would be required. And the standard that we are requesting
is the standard, again, overwhelmingly adopted by the Congress last year, which
is the standard under the Detainee Treatment Act.

The other thing I think is very important to understand is that the standard
that we are asking for is the same standard that the United States is subject
to under the Detainee Treatment Act and under the Convention against Torture.

We think it ought to be the same standard in the way we deal with detainees,
people that we have in our custody and control, should be the same under our
conventions and under our international agreements. And that's all that the
President is asking for. The same high standard that's been in existence for a
period of time.

QUESTION: If you do change this and impose the standard, are you worried at all
that U.S. troops that are detained abroad could be treated differently?

MR. GONZALES: I think that, you know, if other countries were to apply the same
high standard, I think in our discussions with the career folks at, say, for
example, Central Intelligence Agency, they would be quite comfortable with that
standard. If we could get that level of treatment for American agents, we would
view that as, again, raising the standard of treatment for folks detained around
the world.

The other thing I think we need, we always need to keep in mind is that we're
talking about a definition, again, not a redefinition, but a definition of a
small portion of the Geneva Convention obligations. Common Article 3. We're
not talking about the other many protections and provisions that exist under
the Geneva Conventions. The prisoner of war protections, which would be
available generally to our soldiers, because our soldiers fight under the law
-- pursuant to the laws of war. They fight wearing uniforms with insignias.
And so they would be afforded the protection of the prisoner of war provisions
under the Geneva Convention. Those we are not in any way talking about
addressing.

What we're asking for is simply providing clarity to a portion of the Geneva
Conventions, Common Article 3.

QUESTION: General, what is inadequate in the existing military field manual
about the standards there for cruel and inhumane treatment?

MR. GONZALES: Well, the Army field manual is a -- represents doctrine for DOD.
It is guidance. It is not law. It is guidance. It is doctrine. And I think
it makes sense to try to have one standard applied to the entire government.
The Congress has already held that the standard of the Detainee Treatment Act
applies across the board already, to both the CIA, to DOD and any other agency
involved in detention and questioning. And we simply want to extend that.

We want to make it clear that we have one standard that everyone understands.
The standards in the Army field manual do not apply to anyone outside the
military. We've already got a standard that applies to everyone. We simply
want to -- we want to use that same standard with respect to our obligations
under the Geneva Conventions.

QUESTION: Do you think that the Administration would have been better served if
they had sought this kind of clarity and these kinds of standards three or four
years ago before Abu Ghraib, before some of the controversy over torture? What
your critics of course would say is that it's the policies and memos from the
White House and Justice Department that have contributed to this kind of garble
as to what's allowed and what's not allowed.

MR. GONZALES: I've had many opportunities to respond to similar questions. If
in fact there had been numerous instances of abuses, I would say that perhaps
you would have a point. But 99.9 percent of the men and women who have engaged
-- who have fought for the United States in this war on terror have understood
what the rules of the road are and have complied with all of our legal
obligations.

The fact that you had one shift, I think the night shift, from one cellblock at
Abu Ghraib, who engaged in this horrific conduct, should not in any way be
viewed as an indication that there was confusion about the legal requirements.
No one else in that prison had a misunderstanding about what was legally
required. The day shift in that same cellblock, they didn't engage in that
kind of conduct.

Unfortunately, you know, during war, sometimes unfortunate things happen, and
what happened there was very regrettable. I think it was harmful to the
interest of the United States. The difference between the United States and
many other countries, however, is that when allegations of wrongdoing surface,
we take them seriously, we investigate them, and those responsible are held
accountable.

In this particular case, we're talking about a very important program to the
United States. The President has advised the American people that this program
-- that the professionals out at the Central Intelligence Agency will not move
forward without additional clarification regarding what is in fact permitted
under Common Article 3.

And so we've gone to the Congress, and we're asking Congress to publicly support
this program to allow the CIA to continue this program to gather information to
protect the American people. It's important for the agency to be able to have
this public support from the Congress. We believe it's important to provide
clarity to men and women on the front lines gathering information, and we think
it's important for Congress to take action.

QUESTION: Up until this point, do you think there's been clarity or confusion
among the CIA officers as to what's allowed in the secret prisons and the
treatment that KSM --

MR. GONZALES: Only after Hamdan. You know, prior to Hamdan, Common Article did
not apply.

QUESTION: So you think it was clear in their minds what was allowed before the
Hamdan decision?

MR. GONZALES: I think that working with the lawyers at the CIA, the Department
provided guidance as to what in fact was lawful. And they operated -- they
conducted themselves in a way that was consistent with our both international
and domestic obligations.

QUESTION: The President's legislation includes a requirement that lawyers be
provided to people who are accused of wrongdoing under these circumstances,
which is an expansion of the Detainee Treatment Act which originally made
providing legal counsel optional. What's your thinking in expanding the legal
coverage for people in these circumstances?

MR. GONZALES: I think that we looked at the concerns raised by the JAGs,
concerns raised by members of Congress, and ultimately concluded that this was
the appropriate -- one of many changes made to the procedures of military
commissions.

And let me just emphasize the amount of time that we spent with the JAGs. I met
with them twice personally to hear their concerns, to hear their views, to talk
about specific procedures for military commissions. And so, what was presented
to the Congress represented literally weeks and months of work by lawyers in the
Department, lawyers throughout the Administration, talking to members of
Congress, talking to the JAGs, about what would be appropriate in terms of
providing a fair proceeding, but to do so in a way that would protect the
security of our country.

QUESTION: Were you disappointed that yesterday's letter from the JAGs did not
wholeheartedly endorse every aspect of the President's proposed legislation?

MR. GONZALES: You know, I think the primary focus of the most recent debate has
been on Common Article 3, and I've been in discussions with the JAGs. I've
heard their testimony before the Armed Services Committee. They have expressed
concern about not having clarity with respect to our obligations under Common
Article 3. And I think the letter was -- represents a nice piece of military
writing, short and concise. But to me, it's fairly clear. They had no
objections to what the President wants to do. They said it would be helpful.
These are the same military legal advisors for the services. Their
responsibility is to analyze the legal obligations of our men and women and try
to provide as much legal protection for our men and women in uniform.

And so I think their views on this issue should carry a great deal of weight.
They've been involved from the very beginning, following the Hamdan decision,
in developing the procedures for military commissions. We’ve had numerous
discussions about the importance of bringing clarity to Common Article 3. And
I think that letter reflects their strong -- their views about it.

QUESTION: What specific benefit, though, would you be denied under the Senate
bill as opposed to what the Administration has put forward?

MR. GONZALES: Well, the thing about it, you know, talking about with respect to
Common Article 3, recall they provide no definition as to what Common Article 3
is. There's no definition at all.

QUESTION: But in terms of --

MR. GONZALES: So we would be left with uncertainty. Our men and women would
have to make a decision as to whether or not they could go forward with the
program. I'm not sure what advice the Department could give in the agency
going forward, because of the fact that it would depend to some degree upon the
decisions and judgments of foreign courts and tribunals. And so there would be
such a level of uncertainty, that, as the President indicated, we could not
move forward with the program.

QUESTION: You could not go forward with the program?

MR. GONZALES: That's what the President said this morning.

QUESTION: I know that the President has kept open the idea of resuming that
program at some point, but the sense among intelligence people is that he'll
never go back to that program anyway, that that's in the past. And is there a
realistic chance that you would really resume secret prisons?

MR. GONZALES: You know, I'm not going to talk about --

QUESTION: Because they're not secret anymore.

MR. GONZALES: I'm not going to talk about, you know, potential classified
operations. What I can -- I think the President did announce to the American
people in the East Room speech is that we're going to capture additional high
level, high value detainees going forward, people who will step up and replace
the leaders in al-Qaeda. And when we capture them, we will need to get
information from them.

So he did talk about that.

QUESTION: And if you capture Zawahiri tomorrow, where would he be sent,
Guantanamo, or somewhere --

MR. GONZALES: Again, we would take the appropriate actions to ensure that we,
to the extent we could legally, he would be detained legally and treated, you
know, legally according to the legal requirements.

QUESTION: What is the real worth of these detainees? I mean, has there been
actual evidence that they have produced credible intelligence? I mean, there
was a report in the New York Times, for example, that one of these guys was
considered mentally insane by the CIA.

MR. GONZALES: Well, you know, I would just refer you to the President's speech
in the East Room where he talked about how information from these detainees has
been helpful to the United States. I think General Hayden, Director Negroponte,
these are the intelligence professionals that talked about the value of this
program, the importance of this program to the security of our country. The
President talked about it again this morning. I would defer to their
statements.

QUESTION: I mean, just to follow up Eric's question, would it be accurate to
say that the program is in suspension at this point? I mean, in terms of what
the decisions you've made to transfer these folks to Guantanamo. And if you
did indeed capture Zawahiri, bin Laden, others, does your earlier decision
indicate that those people would be treated differently than they have been in
the past?

MR. GONZALES: What I can say is, is as the President said, there is no one
currently in CIA custody. The President confirmed that in the East Room.
We've also said that following the Hamdan decision, there is confusion and
concern about what our obligations are under Common Article 3, because there is
no baseline standard for Common Article 3.

For that reason, I don't know if I would say the program is suspended, but the
program is -- I mean, there is currently no -- there's currently no one in the
CIA program. I can say that.

QUESTION: Mr. Attorney General, excuse me, for those of us who haven't been
following every jot and tibble of this --

MR. GONZALES: God bless you.

QUESTION: You're saying that you want the language defining treatment under
Common Article 3 to be the exact same language that was approved in the
Detainee Treatment Act, the so-called McCain Amendment, and --

MR. GONZALES: It's the same language that was in the Detainee Treatment Act,
the McCain Amendment, as you indicated. It is the same language that defines
our obligations under the Convention against Torture. All we are asking for is
the same standards, the same high standard, yes.

QUESTION: Excuse me. You would say that that same standard would thence forth
apply to any detainee held by the CIA to any detainee held by the military in
Guantanamo, to anyone picked up on that, that same exact standard would apply
across the board?

MR. GONZALES: That would be the standard that would be binding upon the United
States of America. It currently is the standard. People don't understand
that. That is the current standard under the Detainee Treatment Act.

QUESTION: Okay.

MR. GONZALES: The question is whether or not, do we have any -- do we have a
new standard now that the Supreme Court has said Common Article 3 applies? And
I think that there is real uncertainty about what that standard is. There is
not uniformity about provisions of Common Article 3, and we think it's very
important to provide clarity. And we think it makes -- it is legitimate and
appropriate.

Condi Rice talked about this in her letter yesterday, that in interpreting a
treaty, you have an obligation to interpret the treaty's text in good faith,
doing so in a way that's consistent with the purpose and objectives of the
treaty. If the words of the treaty are ambiguous, it is appropriate for a
country to look at its own law, look at its own legal precedents and the
concept, legal concepts within that country. That is an appropriate process or
procedure in interpretation of international legal obligations.

QUESTION: Rather than just to go back to, so to speak, and seek clarification
from the international body that first promulgated the convention?

MR. GONZALES: To seek an amendment or clarification from Geneva? I don't think
that that's practical. I don't think that that's possible.

QUESTION: But if you go back to the body that first put the treaty on the
books?

MR. GONZALES: Let me just say this. There are many -- we can give you many
examples where after the fact, our Congress has passed legislation implementing
our obligations under a treaty. We can give you many examples where that's
happened before. And, as you know, oftentimes when Congress ratifies a treaty,
they take a reservation, or there is a declaration or understanding which sets
forth our interpretation of the treaty, Congress's interpretation of the
treaty.

So that happens all the time. And so our legal obligations may be quite
different. They'd be consistent with, but they would be different from the
legal obligations of other signatories to the same treaty.

QUESTION: Just so we're clear, before Hamdan, the Justice Department's official
guidance to the CIA on the treatment of KSM and others in secret prisons was
that they had to be in compliance with both the Detainee Treatment Act and CAT?
Was that the Justice Department's formal position?

MR. GONZALES: Before? What I can say is, is that before Hamdan, we provided
advice regarding what our obligations were under both the Convention Against
Torture and with respect to the Detainee Treatment Act. I can say that.

QUESTION: But you're saying that what you want now is the language in the
Detainee Treatment Act and CAT. And I thought you were suggesting that that
was the standard even before. Was that what the CIA was told? You're saying
that there was clarity before Hamdan. What was the clarity? What was the CIA
told as to what they had to be in compliance with?

MR. GONZALES: Well, before Hamdan -- I mean, what they were told is that we
have an international obligation under the Convention Against Torture, and we
have an obligation under the Detainee Treatment Act.

QUESTION: To follow both?

MR. GONZALES: To follow both.

QUESTION: How would water boarding, for instance, fall within this?

MR. GONZALES: I'm not -- again, I'm not going to get into the specific methods
of questioning. We provided basic legal advice to the Agency about what would
be permitted under both our domestic and international legal obligations.

QUESTION: Could I sort of clarify the big picture here? I think a lot of us
have been reporting on this sort of schism between some members of Congress and
the White House over issues of the rules for military commissions, the issues of
our obligations under the War Crimes Act and Common Article 3. Sort of the
overarching message I got from what you've been saying here today is that the
question of Common Article 3 and the War Crimes Act is really most important
here, and that while the other aspects may not be unimportant, this is really
what's central.

MR. GONZALES: Well, we cannot continue to defend this country without getting
good information, intelligence information, about what the enemy may be
planning to do. And we know from experience that this program has been vital
in allowing us to get information to protect America. Currently because of the
decision by the Supreme Court, we are unable to get that information.

So for that reason, resolving this issue with respect to Common Article 3 is
extremely important in order to for the Agency to feel comfortable moving
forward.

Now bringing terrorists to justice, as the President has said, is very, very
important. And for that reason, we believe it's important for a commander in
chief to have the tools of a military commission in order to bring terrorists
to justice.

But if for some reason that couldn't -- we can't that from the Congress, we
could continue to hold these enemy combatants for the duration of the
hostilities. So it wouldn't be as critical to the national security of our
country if we couldn't get that resolved, as you describe it, yes, it's
important for us, and we intend to work as hard as we can with Congress to
reach an agreement on the procedures for military commissions.

But in terms of the national security of our country, I'd have to say that
resolving this issue on Common Article 3 is probably more important.

QUESTION: So you're suggesting that once that Hamdan ruling came down, all
interrogations just stopped, everybody froze? Because what you just said was
that --

MR. GONZALES: What I can say is that following the decision in Hamdan, there
was a level of -- we all realized that the decision by the Supreme Court that
Common Article 3, a new standard now applies. It did have an effect on the
operations of the government, because we care very deeply about ensuring that
our conduct is consistent with our international and legal obligations. And so
when the Court says, you have a new standard you're going to have to worry
about, obviously, we have to respond appropriately to that.

QUESTION: You mentioned some of the rulings of the European Court of Human
Rights. Have there been prosecutions of U.S. service personnel or U.S.
citizens under Common Article 3?

MR. GONZALES: You know, I'm not aware -- I don't believe so. You know, there's
been very little in terms of -- certainly from the perspective of the U.S. about
what Common Article 3 covers and what it means. We've looked internally. There
is no definitive positions that have been established by the executive branch as
to the limits of Common Article 3. Obviously, following Hamdan, we've looked at
it. We've done some looking at it. But there's been no definitive
interpretation that these are the limits of Common Article 3. And as far as we
know, neither in the Congress.

And so, when people say we're seeing to redefine our obligations, it's just not
true. We're seeking to define our obligations. We want clarity. We want a
clear standard, and we think it's important for the people in the Agency to
have that.

QUESTION: Well, some people might argue that, well, what are you worried about
then? And maybe the fact that there haven't been prosecutions suggests that,
you know, --

MR. GONZALES: Well --

QUESTION: -- tribunals will have to exercise discretion in bringing these kinds
of cases.

MR. GONZALES: Because under the current war crimes statute, a breach of Common
Article 3 is a felony. It's a war crime. It is now punishable. And so, yeah,
that's why you have people at the CIA who are concerned about moving forward and
doing any method of questioning without clarity, because they don't want to be
prosecuted for committing a war crime.

MODERATOR: I think we've got time for maybe two more questions.

QUESTION: Could I ask just a related question on NSA and the surveillance
program? What if Congress, this Congress doesn't enact legislation that you
all are seeking or a version of that legislation? Any thought about the
consequences about that?

MR. GONZALES: We remain committed to the program. We think it's important. We
of course have appealed the decision in Michigan, but we think it -- you know,
we think it's an important program. It's made a difference in protecting
America. We're optimistic we can still get legislation done this year, and
we're going to work as hard as we can to get it done this year.

QUESTION: -- is there any reason to think you couldn't move forward even
without congressional approval or authorization, would it -- obviously, the
courts could impact you, but would action or inaction by Congress affect the
program in any way?

MR. GONZALES: Well, the program continues today, so, again, we support the
legislation by Chairman Specter. There are changes in that legislation which
we think would enhance FISA, for example. It provides an avenue for the
President if he so choose to submit a program to the FISA court to test its
constitutionality. We think there is some benefit in that. The President has
said that he would do that if legislation were passed that he found acceptable.

So, you know, we continue to think it's important in fighting the war on terror
to have this legislation, and continue to work with Congress to try to make
that happen this year.